Hostile Public Accommodations Laws and the First Amendment
In April 2000, bar owner Tom English paid a $4,500 fine to the Massachusetts Commission Against Discrimination (MCAD). His offense? Decorating his bar with an African jungle display, which included vines and stuffed monkeys. Relying on statements that one of English’s bartenders allegedly made to an undercover reporter, MCAD asserted that English put up the jungle display to mock Black History Month. Although English claimed the display was intended only to liven up the bar during the dreary winter months, he ultimately settled with MCAD in order to avoid further negative publicity.
What is striking about the Tom English case is that the MCAD did not even consider the possibility that the First Amendment protected English’s speech. The MCAD did not allege that English had either refused to serve or had provided inferior service to any African American customers. MCAD’s prosecution, and ultimately the $4,500 English paid in settlement, was based entirely on English’s speech.
